Opinion
September 15, 1961.
November 16, 1961.
Criminal Law — Practice — Habeas corpus — Averments of illegality of sentence and deprivation of constitutional rights — Petition raising no factual questions requiring a hearing — Matters which should have been raised on motion for new trial — Transcript of notes of testimony.
1. In a habeas corpus proceeding, it was Held that relator's mere averments of illegality of sentence and deprivation of constitutional rights did not set forth any facts which, if true, would make out a prima facie case for issuance of a writ of habeas corpus.
2. In a habeas corpus proceeding, in the absence of any allegations in the petition which make out a prima facie case for allowance of the writ, no hearing on the petition is necessary, and the issuance of a rule to show cause is not required.
3. A writ of habeas corpus is not a substitute for an appeal and cannot be used to inquire into matters that should have been raised on a motion for a new trial.
4. A relator's complaint that he has not been able to obtain a transcript of the stenographic notes of testimony of the criminal trial is not cognizable in habeas corpus.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 151, Oct. T., 1961, from order of Court of Common Pleas of Lancaster County, Jan. T., 1961, Habeas Corpus Docket No. 4, page 162, in case of Commonwealth ex rel. Edward Sherman v. District Attorney of Lancaster County et al. Order affirmed.
Habeas corpus.
Order entered refusing writ, opinion by JOHNSTONE, JR., J. Relator appealed.
Edward Sherman, appellant, in propria persona.
No argument was made nor brief submitted for appellee.
Submitted September 15, 1961.
This is an appeal by relator from the order of the Court of Common Pleas of Lancaster County, dated January 6, 1961, dismissing relator's petition for a writ of habeas corpus.
A true bill was found by the grand jury at No. 52, September Term, 1957, Court of Quarter Sessions of Lancaster County, charging relator with the crime of arson. Relator was tried, found guilty by a jury, and sentenced on December 10, 1957, to a term of not less than five years nor more than ten years. At his trial relator was represented by counsel appointed by the court. No motion in arrest of judgment or for a new trial was filed.
On January 6, 1961, relator filed a petition in the Court of Common Pleas of Lancaster County seeking a writ of habeas corpus. On the same day, the petition was dismissed on the ground that it raised no questions cognizable in habeas corpus, but only matters which should have been raised on a motion for new trial. In his petition in the court of common pleas relator avers his innocence, attacks the credibility of the Commonwealth's evidence and witnesses, questions the conduct of his counsel, and avers other alleged trial errors. He also alleges his inability to pay for and obtain a copy of the notes of testimony taken at the criminal trial.
Relator's mere averments of illegality of sentence and deprivation of constitutional rights do not set forth any facts which, if true, would make out a prima facie case for issuance of a writ of habeas corpus. The petition raises no factual questions requiring a hearing. Com. ex rel. Hunter v. Banmiller, 194 Pa. Super. 448, 452, 169 A.2d 347; Com. ex rel. Wolcott v. Burke, 173 Pa. Super. 473, 476, 98 A.2d 206. "In the absence of any allegations in the petition which make out a prima facie case for allowing a writ of habeas corpus, no hearing on the petition was necessary, and the issuance of a rule to show cause was not required. Com. ex rel. De Poe v. Ashe, 167 Pa. Super. 23, 74 A.2d 767. See Act of May 25, 1951, P.L. 415, 12 Pa.C.S.A. § 1901 et seq." Com. ex rel. Rogers v. Claudy, 170 Pa. Super. 639, 641, 90 A.2d 382, 383. See Com. ex rel. Chambers v. Claudy, 171 Pa. Super. 115, 117, 90 A.2d 383; Com. ex rel. Bishop v. Claudy, 373 Pa. 523, 97 A.2d 54.
A writ of habeas corpus is not a substitute for an appeal and cannot be used to inquire into matters that should have been raised on a motion for a new trial. Com. ex rel. Wilson v. Banmiller, 393 Pa. 530, 532, 143 A.2d 657; Com. ex rel. Murray v. Keenan, 186 Pa. Super. 107, 109, 140 A.2d 361; Com. ex rel. Patrick v. Banmiller, 194 Pa. Super. 511, 513, 168 A.2d 798.
Relator's complaint that he has not been able to obtain a transcript of the stenographic notes of testimony of the criminal trial is also not cognizable in habeas corpus. Com. ex rel. Kimble v. Keenan, 194 Pa. Super. 169, 172, 166 A.2d 668.
The court below properly dismissed relator's petition.
The order is affirmed.